10/21/2018

James Phillips & John Yoo on Originalism and Common Law ConstitutionalismMichael Ramsey

These two visions of the courts have given birth to two distinct approaches to judging. The first view mistakenly appeals to the way state judges decide the cases that most Americans encounter: criminal trials, contract and property disputes, and civil lawsuits over accidents. These cases are known to lawyers as the “common law,” which we inherited from Great Britain. Common-law judges are free to create the rules as they see fit. They often exercise the equivalent of legislative power — they are the lawgivers in these areas governed by the states. Importing that model into the federal judiciary creates judges who will not feel themselves bound by the written Constitution or congressional enactment. Supreme Court justices will find themselves tempted to lead the people to where they “should be” rather than where they are. There is nothing to limit a justice but his imagination and his fellow justices. Hence, the great liberal justice William J. Brennan reportedly said that the most important rule in the Supreme Court is the “Rule of Five”: the number of Justices needed to produce a majority, and hence the power to change any law.

The alternative, conservative view sees the judge as an umpire who is as bounded as the judge-as-philosopher-king is free. An umpire-judge relies on a few basic concepts: The law is words, those words have a meaning, and that meaning is fixed at the time the law is enacted. The judge’s job is to figure out what the words meant at the time of enactment. This method of judging is called “originalism” when dealing with the Constitution, or “textualism” when dealing with statutes or regulations. The terms “originalism” and “textualism” are of recent vintage, but the methodology they represent can be traced to the beginning of our nation.

On methodology:

Scholars and jurists can and do disagree about the various ways to get to the original meaning of a legal text. We can determine the common meaning of words to the ordinary person of the time, using dictionaries and examples of usage from the time of the Constitution’s ratification. Massive databases of texts and computer analysis may make this task easier. Another way to get at original meaning is to look through legal materials from that era: cases, treatises, legislative materials, etc. A related technique is to employ the methods lawyers of that era used to determine meaning, such as applying rules (or “canons”) of legal interpretation well-known and used during at the time. [Ed. Looks like they have been reading McGinnis & Rappaport]. An additional technique is to see what contemporaries thought a constitutional clause meant, using all-important sources such as The Federalist Papers, The Anti-Federalist Papers, and the Constitutional Convention and state ratification debates. Finally, the practices of those closest to the enactment of the legal document may shed light on its meaning. We often look, for example, to the administration of George Washington and the first few Congresses to see if their behavior is consistent with one interpretation of the Constitution or another.

And on justifying originalism:

From a constitutional perspective, originalism is clearly superior to the common-law approach of judges who enact their own policy preferences like a legislator. First, originalism is the only legitimate way for a Supreme Court justice to approach the job. As Alexander Hamilton noted in Federalist No. 78, “courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” Supreme Court justices acting like common-law judges by exercising their will rather than their judgment misuse their judicial power under our Constitution.

Further, common-law judging by federal courts weakens our Republic. It takes away sovereignty from the people and places it in the hands of five justices who, by design, are given political independence. Abraham Lincoln rejected the idea that the people’s sovereignty should rest with the Supreme Court. He famously warned in his First Inaugural Address that, “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

Allowing a majority of the Supreme Court to amend the Constitution or a statute is anti-democratic — particularly in the constitutional context. It takes supermajorities of Congress and the states to amend the Constitution, and it took a supermajority of the original 13 states for the Constitution to have been originally adopted. It turns our constitutional system on its end to allow five justices to overrule the will of the overwhelming majority of the people.